Stopa: Summary Judgment for Borrowers!

Editor’s Note: It’s a real pleasure seeing creativity and innovation come from those who defend homeowners. I’ve always tried to introduce some procedural innovation wherever possible in order to get Judges to take a second look.

And yes, many will think you are nuts. But Stopa wasn’t ready to quit and now he is getting some results. And the results he is getting are right on point. It remains to be seen if any of these cases go up on appeal, but one thing is clear — a series of Judges have entered Orders Granting Stopa’s Motion for Summary Judgement for the homeowner and denying the Motion for Summary Judgment filed by the would-be forecloser.

Stopa proves the old ad age: the best defense is a good offense.

My main point in re-publishing his article is not just the idea that the homeowner can move for summary judgment and win, but that Stopa hit the nail on the head when he writes about lawyers being too timid to try new things.

It all comes down to whether you really want to win cases or if you just want to justify your fee. Your oath and your mission is to advocate as a strongly as possible for your client without concern for the way you think the Judge will perceive you in this hearing or the next.

Blazing the Trail

Posted on October 31st, 2012 by Mark Stopa,

Have you ever made an argument in a foreclosure case, and you think it’s a solid, well-taken argument, but there is no case law directly on point?  It can create a sinking feeling.  “I think I’m right, but how will I ever get a judge to agree with me when there aren’t any appellate court decisions which have ruled this way already?”  The tendency, when presented with such a situation, can be to shy away from the argument.  To back down.  To let someone else try to make the argument first.  “I don’t want to look foolish.”  “I don’t want to be wrong.”  “If this is such a good argument, why aren’t there any cases that have ruled this way already?”

While I understand this feeling, this is absolutely and unequivocally the wrong mindset.

As foreclosure defense lawyers, many of the issues with which we are confronted are novel.  That’s just the nature of the beast.  Just think of it this way – when, prior to now, in the entire history of America, have property values collapsed by half (or more), causing millions of Americans to face foreclosure, essentially all at once?  Obviously, the answer is “never.”  These are unprecedented times, so it should come as no surprise that, in the history of jurisprudence, our court system has never before been confronted with some of the legal issues with which we now deal on a daily basis.  As a result, to defend homeowners the right way, we have no choice but to argue things we may have never argued before – to present arguments to judges they may have never heard before, for which there is no case law.

One such example?  Asking a judge to enter summary judgment for a homeowner in a foreclosure case.

In Florida, I know of no appellate decisions that directly authorize this.  Such case law may exist, for example, if it’s undisputed the homeowner paid the mortgage in full all along, but that’s not what I’m talking about here.  I’m talking about cases where homeowners are behind on their mortgage payments, perhaps significantly behind, and the bank has filed suit for foreclosure, but the homeowner is entitled to prevail on that case anyway.

I introduced this concept a few months ago,via this blog post.  In the ensuing months, I’ve made that same argument many times before Florida judges, often before judges who had never heard it before.

Sometimes, quite candidly, it’s not easy.  A few times, the judge seemed to think I was nuts, at least at first, when I told the court that I wanted summary judgment for my client.  Typically, however, once I get into the argument, and explain why my client should prevail, that initial skepticism is replaced with intrigue at the argument.  Often, in fact, these judges have agreed with my position, entering orders granting summary judgment and dismissing the case.

Invariably, do you know what happens when I go back before that same judge a second time?  Or a third time?  It’s easier.  The judge is familiar with the argument.  The judge understands the legal issues and knows how they apply.  I’m no longer the crazy lawyer asking for a client who hasn’t paid his/her mortgage to prevail, but the lawyer making sound, legitimate arguments that are perfectly consistent with the law.

Do you know what makes all of this a bit easier?  When the judge I’m arguing before sees that other judges have agreed with my argument.  That’s why, whenever I have a hearing on this issue, I bring the Orders I’ve obtained which entered summary judgments for my clients in other cases.  It’s one thing for me to argue something – it’s another for the judge to see that 5, 10, or 15 other, Florida judges have agreed with my argument and dismissed the case as a result.

In the grand scheme of things, my “success” here is limited.  I know that this argument isn’t being made everywhere in Florida.  I know there are many capable judges who have yet to hear the argument.  I can’t argue this for everyone.

It’s time to get the word out, folks.

Below are several of the Orders I’ve obtained upon making these arguments.  By posting these Orders, I am not suggesting that the same result will happen in any particular case.  That said, it’s certainly possible, and I have to think the chances for any particular homeowner will improve if/when the judge sees that numerous other, Florida judges have agreed with this argument.  Hence, that’s the point here – to blaze a trail.  To help everyone (including judges unfamiliar with the argument) realize this argument has worked, and can work in the future.  Everyone in foreclosure-world should be aware of these arguments.

Order Granting Summary Judgment – Judge Carven Angel (Hernando County)

Order Granting Summary Judgment – Judge Amy Williams (Pinellas County)

Order Granting Summary Judgment – Judge Pamela Campbell (Pinellas County)

Order Granting Summary Judgment – Judge John Schaefer (Pinellas County)

Order Granting Summary Judgment – Judge Amy Williams (Pinellas County)

Order Granting Summary Judgment – Judge W. Douglas Baird (Pinellas County)

Order Granting Summary Judgment – Judge Robert Foster (Hillsborough County)

Order Granting Summary Judgment – Judge Donald Evans (Hillsborough County)

Order Granting Summary Judgment – Judge Michele Sisco (Hillsborough County)

Order Granting Summary Judgment – Judge Frank Gomez (Hillsborough County)

Order Granting Summary Judgment – Judge James Barton (Hillsborough County)

Order Granting Summary Judgment – Judge J. Rogers Padgett (Hillsborough County)

Order Granting Summary Judgment – Judge Robert Foster (Hillsborough County)

Order Granting Summary Judgment – Judge James Barton (Hillsborough County)

Order Granting Summary Judgment – Judge Donald Evans (Hillsborough County)

Order Granting Summary Judgment – Judge Donald Evans (Hillsborough County)

Order Granting Summary Judgment – Judge George Shahood (St. Lucie County)

Order Granting Summary Judgment – Judge Thomas Kirkland (Orange County)

Order Granting Summary Judgment – Judge Lynn Tepper (Pasco County)

For those of you counting, that’s 14 different Florida judges who have entered summary judgment for a homeowner in a foreclosure case.  (Undoubtedly there may be more of which I’m not aware.)

So take these arguments.  Use them and apply them, as appropriate.  Keep fighting.  And, more than anything, realize that there are virtually always defenses that homeowners can utilize, even those facing foreclosure.

42 Responses

  1. Attorney Ha is looking for this robo signer! Shelley, I am looking for any assignments signed by McElligott on behalf of MERS. Thanks.
    If you have any info email me at

  2. Can the debt collecter file satisfaction and release of mortgage?

  3. A debt collecter can not comply with the terms of the Note and Mortgage. Get It?

  4. JG, Think Enforcement of the Note and Mortgage. If I pay off my mortgage (cash, refi, sale) the NA is compelled to comply with the terms, but can they? In all cases of default and cure the answer is No!

  5. JG, Good Case. Imagine if every homeowner who were defaulted and cured went and requested a Title Policy to cover a sale or transfer of ownership. After seeing the Exclusions, they all would run to an attorney and get the pretender and pretenders attorney put on Notice of Fraud. They would wait til Dec 31st 2012 has passed. As MS said …. the lights Go Out at Midnight. They were running on hot air this last year. They ran out of that to.

  6. @liz – I read that case (Johnson) and there are a couple noteworthy items. imo. First of all, Johnson (“J”) asserted he was ready, willing, and able to tender. I didn’t take the best notes, but I don’t think the court found he even had to be. But what strikes me is he apparently didn’t have to prove it (hmmm). He had sent a QWR which was ignored after the ack they received it.
    Johnson presented a case which says he did everything he was ‘supposed’ to do and I think the court was influenced by that and his (unproven) stmt that he was r,w, & able to tender to a proper party. So influenced that the court ruled in J’s favor repeatedly when,
    say, interpreting laws and case law.
    I don’t want to accuse the court here of a bent, even if in J’s favor; I’m just pointing out that diff courts, maybe based on the pleadings before them, find in favor of the banksters at every point. Not so here and I think for the reasons I cited. Plus J made some good arguments, of course.
    B of A threw out the usual blither that it isn’t a debt collector to whom the FDCPA should apply. B of A also argued f/c doesn’t constitute collection of a debt within the meaning of FDCPA. B of A lost those.
    I was glad for the court’s reminder, because I’m no fdcpa scholar and forget stuff left and right, anyway, that FDCPA applies to a servicer or assignee where the debt was obtained (servicer or claimant) by either AFTER default. Seems to me this is another reason making the matter of the servicing date or claimant’s assignment of interest critical.
    A couple weeks ago I cautioned about asking a court, mol, to make inferences from pleadings. B of A made that mistake here and it cost them.
    And how could one overlook this: the court’s discussion includes
    the matter of a late assignment to a trust and upheld, basically, J’s
    interest in that deal. I was personally happy to see both that J avered and that the court did not toss J’s averment that so and so is not a MERS’ asst v.p. and was not appointed as such by MERS’ board of directors.
    The ‘accounting stuff’ in here isn’t highlighted like other good info, but
    it’s worth understanding. The only thing I took issue with is that at fn
    1 the court says J wants its help in determining the hidc. I would say J wants the court’s help in determining the real party in interest, who is not necessarily the hidc if it is not the party aggrieved by non-payment. Interesting case.
    lay opinions, as always

  7. @ E.T.

    right on.




  10. We just got the response from the Deutsche atty. They are using the ACCOMMODATION ONLY recording as evidence that they own the property. It says right there on the stamp, in bold letters that the recording has “NO REPRESENTATION as to its effect on title”. This is the same document we used to show they held no position. What, if it does not state that the recording is meaningless, does an Accommodation Recording mean? (and yes, I did look up the definition).

  11. hman

    Hang in there. AZ needs you !

  12. et – you’re right. I’ve been looking at the UCC (finally) and although I can’t yet (if ever) fully set out and explain all the bankster-driven amendments in 2001, I’ve sensed that those changes aren’t just bankster-friendly, they are criminality-friendly. Because one would have to know a lot of the UCC because of its constant, incessant ref to other article sections and their subsections, I’d probably never be able in my lifetime to prove that some of the stuff like in committee notes is just plain bogus. “”We approve changing this because it will help yada yada” or “alleviate yada yada”, allegedly a good thing for prudent business and the polity. BULLsh$t. That’s not how it feels and I am doing my best to look at it with a level eye. As always, e.tolle, you could say this so much better. In fact, you did. I just added a detail.

  13. Journalistic ethics flushed with a single sheet of one-ply:

    While HAMP did modify loans and prevent roughly 800,000 foreclosures, the study found it could have helped another 800,000 homeowners if all lenders had been operating at the same high level of capacity.

    High level of capacity? Are we being led to believe that there was a high mark chiseled somewhere on the Treasury Department’s wall of shame? Now that’s funny, I don’t care who you are. Oh well, it’s only nearly a million families (officially…it’s probably five times that amount in reality) that got displaced and are living in the Cherokee Efficiency Apartments after dropping off their family pets at the pound and selling Grandma’s tea set for gas money and GMO tacos.

    Public attention shifted away from HAMP after a $25 billion settlement was negotiated in March between banks and state and federal governments over abusive foreclosure practices.

    Abusive foreclosure practices? Millions of fraudulent documents proffered upon courts, borrowers, and county recorders, stripping people from their most important assets? Folks, that’s called seizing the narrative. Let us all pretend that fraudulent assignments are just something that had to happen in order for the economy to improve, and that millions upon millions of people would have to be tossed to the curb like so many bags of garbage, all the while continuing with the story that they bought too much house, that they shouldn’t have put their kids through college while leveraging the house that they’d bought decades before in order to nest egg something of value, like raising educated children that won’t fall for this shit again in the near future.

    Always pay attention to the fact that the government and their rulers, the financials, will never have a problem with themselves leveraging 40 or 50 to one, since it’s all backstopped by the taxpayers. But if the borrower has problems making the monthly outgoes it’s a one way ticket to Tent City, USA. Think Corzine.

    But the settlement, too, has been disappointing. It has largely failed to stop foreclosures, which was the goal. Rather, banks are using the fines they agreed upon in the settlement to facilitate short sales, in which borrowers sell their homes for less than they owe.

    Oh….was the goal of the settlement…. to stop foreclosures? I missed that entirely in the two year run-up to that whole incredible sell-out scheme. All I remember is hearing that people were going to be hauled off to jail, and that this situation would be cleaned up with a shop-vac. But after campaign donations exceeded the government negotiator’s wildest dreams, those goals were steadily reduced to charging off the criminality to the investors of the banks and foreclosing again with reckless abandon. “You can resume napalming the homeowners now, we got what we set out for!”
    Only in modern day America can criminality be written off with no repercussions on such a massive scale, with the people so glued to their TVs and high fructose diabetes that hardly anyone makes a peep. It’s like cattle to slaughter….none bleat until they themselves are in the chute facing the dreaded slap-bolt.

    “In a short sale, homeowners still lose their home, though under less punitive terms than a foreclosure,” Bloomberg Businessweek writes.

    Punitive terms? Being forced to sign away any and all rights to properties and future claims, not at all owned by the entities pretending to short your sale? How funny is that? Oh wait….I should say, how sad is that? Some family has to move in with Mamaw and Papaw in that tiny apartment in Saginaw, pulling the kids out of school because a mass title laundering is underway. And it’s all GOVERNMENT SANCTIONED!

    Our findings reveal that the ability of government to quickly induce changes in behavior of large intermediaries through financial incentives is quite limited, underscoring significant barriers to the effectiveness of such policies.

    Did you hear that psycho-babble that attempts to explain that our government is ineffective due to total capture? Is it due to the fact that the markets can’t control themselves, as that idiot Greenspan always spouted? Or is it that GOLDMAN SACHS/CITI/BofA/WELLS/CHASE – ARE – THE FUCKING GOVERNMENT, AND THEY’VE RE-WRITTEN LEGISLATION FOR DECADES REDUCING US ALL TO FARM ANIMALS IN THEIR STOCKYARD?

    Listen folks, it’s truly them or us. There is no middle ground. At some point, and I hope like hell it’s soon, we’ll all take up pitchforks and rakes and walk towards whatever government building is nearby….I don’t care if it’s a fucking DMV, and demand that things get righted, that the criminality is dealt with like it always used to be dealt with, by putting the bad guys in jail, and leaving the hard working families in their homes, and in school where they belong.
    I’ve been saying this here for going on five years, we have to stop them, or it’s lights out for all of us. We must tell them no. In no uncertain terms. Or else. Fear us. We mean it.

  14. This all comes down to the fact that what we originally signed was a complete lie.

    …and some debt collector gets the house…on down the fraudulent road.

  15. Somewhere around here I was talking about why a bankster may not stand on a right to enforce a note to invoke the juris of a court (beside the rpii rule). The reason, I said, was because the first action in regard to a default must be against the collateral (not for a money judgment on the note), but I couldn’t remember why. It’s because these loans are “non-recourse”, which is the word I couldn’t remember. State laws will vary, no doubt, so everyone should check his own, If one’s state, for instance, prohibits a deficiency judgment, it’s probably a non-recourse state. Also, check for a “one-action” rule. The one-action rule says, essentially, that there may be but one act to collect on a note secured by a dot, as I recall but it’s been awhile.
    But remember, that wasn’t the end of the story. I posit that a non-owner relying on art 3 right to enforce is not entitled to an assgt of the dot and if he gets one, it’s either a nullity or a bifurcation, unless, I suppose, he can show that he is an agent of the noteowner.
    lay opinions. ask a lawyer

  16. DTCC finds 1.3 million soaked securities in Sandy-flooded NY vault

    “(Reuters) – The Depository Trust & Clearing Corp., which processes financial transactions and stores securities, has begun the long process of recovering about 1.3 million soaked securities that were stored in a 10,000-square-foot underground vault in a lower Manhattan skyscraper flooded by Superstorm Sandy.”

  17. power to you poppy. godspeed

  18. That’s exactly where I am going with this…these bums, have literally bankrupted everything. And the only answer our government seems to be able to come up with is continuing to bail them out?

    Maybe I missed something along the way here, but I thought the rules were clear, thieves go to jail, in the United States.

    I cannot tell anyone else what to do, but I am filing a complaint against my deed office for filing false paperwork, the originator is not the lender. And I am trying address the non-judicial foreclosures, as they are far to easy to falsify, especially with blank applications and such.

    At this point I am hoping to use our Constitution to fight. The Fifth Amendment is clear on self-incrimination, which is what we have here. We have “no legal” obligation to admit anything in these courts, as 99% of the complaints are false. Then we have lost our rights under the Seventh and Fourteenth Amendments…it’s called Due Process. Some of these judges need remedial classes on what the Constitution says and ADHERE to it.

  19. poppy, is this lawless america, lawless, everyone think about what lawless truely means, think about what our forefathers did to protect the weak the poor the sick the disabled our vetrans and the ignorant.

    Matt Weidner said it best to the attorney community “this is your highest calling” judges are attorneys. Bar Council are attorneys, the Attorney association makes huge contributions to congress aparently (i cant state figures) I see there are movements out there to lobby and i have an idea, i am researching this but it involves healthcare, police, fire service workers, this section of the community lost big time as i believe they were targetted, they lost their homes too, their pensions are at grave risk and for some, their jobs.

  20. The taxpayers are buying 40 Billion of MBS’ for 18 months…$7,200,000,000,000, these MBS’ are worthless. Federal pensions are at stake here…the government sits idly while these entities continue pocketing Billions and converting homes they do not own.

    I, personally, have not found one shred of evidence to support a transfer of real money for my loan, nor is there any conclusive documentation that the servicer has a right to service anything or a Substitute Trustee is who they say they are and their authority is not a “legitimate” legal assignment.

    At no point is any government entity attempting to recover all the money stolen, under the guise of lending. They stole our identities folks and took money under false pretenses. Now they are committing fraud on every court in the country to take something that does not belong to them, as they never paid for it, nor has anyone given them authority to do so.

  21. Excellent comment following an article written by Adam Levitin here

    You speak of a “lemon” problem with MBS. The percentage of cars that are lemons — that is, that have unintended manufacturing as opposed to design defects — is at most a percentage point or two.

    Here, the percentage of mortgages that failed underwriting standards was 60-80%.

    Here, Countrywide employees passed around forms they could use to falsify borrowers’ stated income.

    Here, mortgages were often never even transferred into the ownership of the MBS trusts; the trusts often had legal title or recourse to nothing; the buyers of the MBS were often buying literally nothing.

    Here, millions of assignments, notes, deeds were forged to cover up — and are evidence of the banks’ knowledge of — the deficient or nonexistent chains of title and recourse.

    Here, trustees of MBS trusts such as BoNY-Mellon have explicitly argued in court filings that they owed no fiduciary duty to the investors, the beneficiaries of the trusts. They argue — contrary to hundreds of years of common law regarding the meaning of a trust and the role of a trustee — that their duties to the beneficiaries were purely ministerial. Meanwhile, they seem to have a strong sense of duty toward the banks like BofA that bring them business.

    In this context, the MBIA case is little more than one more instance where the federal judiciary and the regulatory/prosecutorial apparatus bend over backwards to protect a large bank and prevent an open and clear discussion about the fact that the MBS in question hold the record for the number of different frauds contained in the same security and are among the most fraudulent securities ever concocted.

    And why is it so important that we avoid that discussion?

    Because the federal Reserve has $1 trillion of those fraudulent MBS on its balance sheet as a backstop to the value of the US Dollar; securities that the Fed purchased in violation* of the Federal Reserve Act.

    *The Fed’s MBS purchases were and are illegal because MBS guaranteed by Fannie and Freddie are not federally-guaranteed. The US Treasury’s support of Fannie and Freddie, which are private entities, only goes to the end of 2012 plus another $200 billion. MBS guaranteed by Fannie or Freddie are therefore not federally-guaranteed, not even close. At best, agency MBS maturing prior to, say, 2015 could arguably be said to be somewhat guaranteed.

    The Fed may only purchase securities that are guaranteed as to principal and interest by the United States. One could argue that the MBS purchased by the Fed at the height of the crisis in 2008 were purchased in a force majeure situation, but the subsequent purchases, now totaling about $1 trillion, were certainly purchased illegally in a plain violation of the Federal Reserve Act. These are facts that the Fed has effectively admitted in a footnote here and there but refuses to discuss — and about which no one seems to ask…

    Posted by: Frederic Lehrer | November 16, 2012 at 12:58 AM

  22. joann – if you trust me, send me some of your pleadings or else the info I need – you know – to get it myself. Saves me money if i don’t have to get them myself.
    I won’t divulge anything anywhere. I think I could get a better handle on what you’re saying that way.

  23. @ johngault

    My piece: There was no loan. They hold the applications and approvals to sell forward to perspective buyers…if that does not happen they have to lie about the ratings and sell them as MBS’ or to hedge funds at “discounted” prices. Or maybe their lines of credit are shut off, they are then in a position to hold the paper, not able to put it into a trust, hence no perfection, but a default on their agreement and a buyback, which they could not do, due to cash flow problems. A lot more, cannot write all, but believe me, there are mortgages out there that have not been funded, unable to move into a trust, no repurchase ability, seizure of notes (no authority to the party that seized the note; only) and the person doing the seizure was not the lender…Hmm. Many of us are dealing with New Century and Countrywide…they are all in the same canoe, with no oars. If you get my meaning. I have discovery, compelling documents and it is all valid. When I cross reference with wire transfers, court transcripts, court filings, signatures and deed office paperwork…it is all rubbish. Each to their own…I have been having an uphill battle, the judges don’t see it, but the paperwork speaks for itself. I didn’t make this stuff up, they did.

    FYI: if anyone bothers to read the Constitution, Amendments and Federal Statutes, the Judges are ignoring all of it. I mean all of it!
    Specifically, the Fifth (self-incrimination), Seventh and Fourteenth Amendments…never mind the forgeries and fraud.

  24. Well, ms, it’s like this. I have no need to teach nor am I qualified or capable and at least to those who know sicum, that’s probably evident. Everything I say is limited to a lay person’s perspective and opinion. I’d like discussion – that’s my goal. YOU teach, have at it – but try to explain something already, eh? You don’t appear to be good at that. Acknowledge that, if you will, and teach it to someone who is.
    Last time you tried to frame some of your arguments, they didn’t even make sense. Maybe what you mean does, but what you wrote didn’t.
    “There’s no loan”. That’s a pretty big statement, but okay. When was there no loan? The minute it was allegedly made? Two days later? Two months? Why? How about stopping dumping very complicated stuff on us and find someone who knows how to explain it to us – one step at a time? People can’t and won’t read everything linked or referred to here. I try not to link something with no attempt at my interpretation of the material there. Just linking something is lazy, in my opinion. Plus it’s helpful to try to get others motivated to read the material so they can put in their own two cents.
    Just lately material I’ve read has lead me to believe or at least want to look at trusts only getting security interests. Why would that be done instead of sales of the notes (which it appears are in fact regulated by 9, whereas ‘transfer’ is or might be reg’d by 3 if these are neg instruments and for everyone’s reminder, I’ll repeat that Weidner is arguing these notes are not transferable by way of art 3). But as to the question I just posed, got me, unless it’s to retain insurable interests.
    So am I guessing? Well, yes and no. I formed an opinion. Now I’d appreciate others take on it. I do want to “go back, go back”, as I think it was carie used to say. I think one has to. (well, I dont WANT to)
    You have no idea how I would gladly fall in line if I could find a reason to do so. As to NG’s position, which I don’t fully understand, I’m not sure our particular paths won’t cross. It depend on if the investors’
    moolah were used to fund loans and what that means if so. Is the investor the lender or were there funds “just” absconded and what does that mean?
    You say there are no loans, which would certainly undermine what I’ve come to believe is the case here or at least want looked at by others with common goals. I think if you want people to get invested in what you say, you’re going to have to do better. In the meantime, you may get your yah-yahs putting others down, but what’s that get you? What’s that get others here? As for me, my skin is at least a little thick or I couldn’t raise any issues here. Now how about you being a good ms and find someone who can explain what the heck you’re talking about.

  25. Who are the Players …

    Party “A” Lender [Registrant]
    Party “B” Member Banks [Pledgee] (Reg 506 D financing]
    Party “C” Seller [Pledgor]
    Party “D” Foreign Central Bank representative [Liquidity]

    Pledgee cannot act in total disregard to FIERRA and SarBox , therefore….Mers Corp.

    Comment – Not an attorney out there that can interfere with an act of congress and unheralded powers granted to the US Sec of Treasury …. So why are they taking your money ?

    Comment – R.E Investors – Your days are over

    …..Its bad and something or someone has to rally .. Reagan said , if not checked this day would come and a free economy is something you would tell your children about .

    Its come ….

  26. No note there is no note . No note means no deed deed no note. Why …read the deed . Just read the deed …no note got it . AS 320 -10 and FAS 140

    (Thank our lucky stars JR no one is listening)

  27. JG – The big thing I’m trying to distinguish is who owned the note

    If you don’t know …then ask ….just ask – again why guess …Why do you need to teach – ask ….

  28. Ian – yes, I believe as I said third party payments reduce a note and that it’s in the UCC. Just haven’t gotten around to finding it. And what you said about no one being any the wiser could certainly be true.
    But lenders don’t make default claims under title insurance policies.
    They make them under default insurance. Back in the old days, that
    was pmi, which was required on any loan over 80% ltv. I don’t know when pmi kicked in. It might not have paid out until whatever could be realized from the sale after f/c was known. I don’t know when any of this ‘new’ default insurance pays out, either, but it matters.
    The big thing I’m trying to distinguish is who owned the note because it seems to me the insurance has to be paid to that guy and no one else to reduce the amt owing on the note, and that’s if it’s paid at default and not after the post f/c resale establishes the loss. I have three sources now which indicate if not support that the trusts only got security interests v ownership of the loans. The deal appears to have been structured after “mezzanine” lending, except couldn’t be loans from the investors, had to be purchase of security interests, which as I said, strikes me as a load of manure. But then again, what have I ever known about security interests? I just thought people got them by making loans on assets.
    Bottome line is it appears to me the trusts “bought security interests”aka the new tag on loans on secured assets, and article 3 is used to allegedly give the trusts the right to go after the secondarily obligated party (us), the bankster being the primary obligor. I think it’s the article which I linked yesterday which somewhat addresses the difficulties of doing that and my take is it’s suggested it can’t really be done. So we need to look into that deal a lot more. One of the considerations is that these are trusts subject to laws other than the UCC. They’re subject to trust law. In other business arrangements out there in business-land, what they’re trying to do with art 3 transfers of the notes (if not art 9 by way of the assgt of the note in the MERS assgt of the dot) there is no cut-off date or trust law to consider, so it’s just a matter of contract. And, noteworthy, here, it certainly appears it’s the indentured party’s (bank) default that would be at issue, not the homeowner’s to the indentured party. Unless some contract says otherwise, like default on the underlying collateral gives rise to the secured party’s right to claim the collateral v an action against the indentured party. Something like that. Any guarantee, such as
    FNMA’s, is in play, also.
    I certainly don’t know what all this means if the trusts only bought
    security interests and esp with ‘pass throughs” on payments made on the underlying collateral. For all I know, that’s only conceptual and by that I mean that’s what happens or it’s the idea but it isn’t literal if the bank has the obligation independent of the borrower’s payment: 64 gazillion dollar question. One minute I think I’ve got a handle and the next, it looks like greek again, because a 100 new questions pop up having to do with the actual contract between these player and any applicable trust law on say, passivity. Don’t know if that’s the right word.
    As to Tarp, that’ll take its own village to try to figure out imo. Say banksters got the money and it was used to pay investors which it probably was if for no other reason than it appears to me they were overcommited by that tranches business (but I sure don’t know) even if the homeowner made his payments. What if anything does that do for the homeowner? Got me, but maybe nothing. If the banks owned the notes and they got paid default insurance money, seems to me the notes were paid off to that extent.
    But even that’s a hornet’s nest – which ones, if the bank owned
    10b in loans and got 7b in tarp funds? Distribute evenly?! Book entries? So I’d stay away from that one and stick with other facts as we learn them which might undermine claimant’s claims against us. If we can get a consensus that the trusts only acquired sec interests, we can turn our attention to what is being done with art 3 (post cut-off date) transfers of the notes and art 9 post cut-off date transfers by way of the mers assgt and what are our defenses. One thing imo it means is since art 3 is not a sale of a note, the trust is not in fact the rpii even if it has a right to enforce (and then we move to the propriety of an assgt of the coll interest to a non-note owner, notwithstanding the alleged assgt of the note in the MERS assgt, and I, hopefully with some help, also try to support my prop that there’s no such thing as a right to enforce an unsecured mortgage note, i.e., enforcement must be against its collateral, long and short).
    In order to change their req to join the rpii pursuant to FRCP 17, the banksters would have to admit and argue that they have been assigned the note in the seemingly innocuous MERS’ assgt of the dot (though it’s bunk imo) and it doesn’t violate trust law at this date. The next issue is how does that square with the investors? Might not do us any good except by way of the investors saying no thanks if they “got it” and it’s not a contractual agreement.
    In fed court, Rule 17 says an action must be prosecuted in the name of the rpii, which means if it isn’t being, the rpii must be joined by the claimant. Is failure to join the rpii an aff defense? What is it when one is the plaintiff? I don’t know, but one wouldn’t want to make that allegation as a defendent for sure without knowing what all doing so means if it’s an aff defense.
    I think in Weidner’s latest, it’s known that the alleged art 3 holder is not the owner and is claiming it has a right to act either for an unidentified note owner it refuses to identify or in its own right and Weidner is saying “not”. The basis of this particular “not” I dont know (17?) because I haven’t been able to read it yet and don’t even know what juris it’s in – fed v state nor if any particular state has a statute requiring actions to be brought by the rpii.
    To start, we need to identify the parties true relationship to each other.
    These are lay opinions regarding a proposition that trusts only acquired security interests, are made for discussion, and aren’t legal advice. ask a lawyer

  29. Johngault- the UCC states (sorry don’t have reference) “any payment made on an obligation reduces the obligation by the amount of the payment, even if said payment was made by a stranger to the transaction”. Example: I go into default on my “mortgage” but later cure the arrearages and no foreclosure takes place. Meanwhile, the servicer has made a claim on the Lenders Title Policy, for 80% of the outstanding balance of my “loan”. They get paid, without noting payment in their remittance report to the Trustee for the Trust, if there is one, I get notice that a new servicer has “purchased” my “loan”, the loan number changes, or instrument number, and neither I nor anyone else is the wiser. I did notice that my servicer received over $600,000,000 from the TARP program. And that they had listed themselves as a Lender with my state’s Dept. of Banking. But they pulled their registration in 09 and are not listed with that Dept. currently.

  30. If pro se esp – Please ensure you save copies of everything your mailing receipts registered mail. Cover every base.

  31. Hman- line yourself up for appeal.

  32. Hey JG,

    MERS is the Devil as we all know. I’ve written my AG and others of the fraud. Consider this;

    *Trust not registered in AZ. How can “trustee” claim they are acting on behalf of an unregistered trust? Lack standing?

    *MERS-Dissolved in AZ since 4/28/2009.

    *”Lender” Defunct since 2008.

    When you consider all these facts I ask myself this. How can the trustee of the unregistered trust direct the servicer to initiate an assignment via MERS from the dissolved “nominee/agent” of the defunct lender? O did I mention that I already won my first case against my original lender in Jan?

    So my original lender already found in default and had no interest to assign didn’t stop the MERS assignment from original lender to substitute trustee. Now the trustee is trying to reframe this assignment claiming that the verbage on the assignment “successors and assigns means the interest could have came from someone other than the original lender. Also, I have another MERS assignment from them that predates this assignment that was unrecorded. So I actuallly have 2 MERS assignments from “Lender” to Servicer. What a scam.

    Now I’m in litigation with everyone. The servicer, the trustee, etc… Every month they try and sell the home and every month I send them a love note stating they will be liable for wrongful foreclosure and how greatly harmed I will be. They stop at nothing.

    Hopefully, I will be done with my case in the next few months. I’ve been fighting for over 2 years now and hopefully this will end soon.

  33. Wow *S*T*O*P Guessing

    Way Way Way Too Late …..Parties over Decemeber 31st 2012. You know I’m right ….yes you do …why …Debt Forgivness

    Mers Corp is the Federal Reserves right to take assignment of an interest for which an ABA wire was delivered on behalf of a failed member bank or member bank who was forgiven the obligatin owed and which remains outstanding.

    Example J “I told u so” Gault –

    CWHL Inc makes a loan under a Purchase and Sale with Bank of America N.A. BofA is transferor under MLP&A agreement , who is Dba BAC “creditor ”

    BAC creditor is Dba CWHLInc. in a big roundabout circle joik.
    Dan E knows this right Dan E?

    CWHL Inc is now defunct and assets “interests” merged with BAC who is moved of balance sheet into Recon Trust . BofA owes the Fed Reserve for charges under TARP 2008 Act and Tax Payer bail out funds etc…Recon Trust is a FA appointed unde the DOT taking assignment from Mers

    MersCorp is ANY member bank who Fed elects to take up the claims by right of assignment. (I think the courts know …12(b) 6 ahhhh….)

    NG Don’t look stumped Pal …

    For God’s sake,..your not an accountant and never been on the street trading …. The Fed is the tax payer and tax payer is the Fed .

    YOU the tax payer are MERS Corp Understand.


    Alter ego the courts have yet to address that causes conflict in the homeowers right to bring claims .

    Im just trying to restore ones name –
    its to late to try an help ….

  34. about MERS:
    ” Look closely my friends at that mortgage: it is signed only by the maker of the note who has no power to bind the note payee. And there is no power of attorney from the note payee (the origination lender) recorded or other authorizing reference in the note that allows or even mentions that Mers has this power on behalf of the note payee.”

    This is a comment made on May 19, 2008 by a “Greg” to NG’s post, the one I linked from May 14, 2008. He said it in the first sentence. Greg, my brother, where are you? It took me quite a while to get that and even then, I never could say it that succinctly. As I look around online for this and that, I am amazed at some of the things people here and there figured out 3 to 4 years ago, way ahead of the curve.
    Take out the mers mystique and what there is is a bag of bankster tricks. I quoted “Greg” here to draw attention to that issue again.
    “But this court ruled and that court ruled…” Who ever in one pleading on this planet made this particular argument or the attendant one, which is that the note maker, the only one to sign the dot or mtg, can’t bind alleged successors and assigns, either?

    Also, people are apparently being subjected to multiple assgts from “MERS” read-servicer-employee, including one then alleged to be an “oops” assgt by the bankster. First of all, how is it that the bankster may speak for MERS in alleging one is an “oops” assgt? I don’t personally believe there’s such a thing as an “opps” assgt, not if it’s been recorded. It’s not oops, it’s not nothing, because imo it’s a cloud on the title. It may be true that a second assgt from “MERS” is of no effect since MERS has already alleged to have assigned the dot to the first guy. But I think recordation makes a difference. I can’t back that up oter than to say it’s a cloud on the title, but it seem to me that SOMEthing has to be recorded which gives notice about that second mers’ assgt. A court may find in these cases that it’s essentially a nullity, but that doesn’t change the fact that public record is messed up. If a court says it’s a nullity, is that the end of it for the homeowner?

    And since MERS alleges to be the common agent for everyone and his brother, how does anyone know MERS didn’t make the second assignment for a new alleged principal? Really – how?

  35. I think after all this time I may have hit a bulls-eye. When we hear that interests of the trusts must be “true sales”, believe it or not, it means the sale and purchase of (security) interests in notes by the trusts, as opposed to loans from trusts to the banksters based on the notes as collateral. The notes are never meant to be sold. Only security interests are sold, which is what I thought a year ago but couldn’t support. Well, I thought the trusts only bought payment rights. I didn’t know about security interests back then.
    NG actually posted the material on May 14, 2009, wich I just found elsewhere and which has finally made it clear the trusts only bought security interests. I think, but don’t know, that the notes not being actually sold has something to do with all those tranches. Plus, that way, the banksters still had an insurable interest, something that’s bothered me (their need to have an int to insure). And here, usedkarguy, I remind you of the discussion the other day about third party payments to note OWNERS. Third party payments retiring a note dollar for dollar is I believe, but it’s not a mystery. I’d bet the farm it’s covered somewhere the heck in the UCC. My own belief is because that’s what I was taught. And I’m happy to report I wasn’t too far off on the bankster trying to create the right for a trust to foreclose to 86 the banksters OWN obligation by way of ART 3 and using the handy credit bid by the trust. The credit bid is an attempt against the banksters’ payment obligations by the banksters. I don’t think it’s possible to 86 the payment obligation that way and I sure as hey don’t believe the tortured if not illegitimate way they try cuts it. **

    The bankster is the primary obligor, as I opined the other day and then freaked I was giving a bum steer. I did get some things wrong. So shoot me, but at least, if I may say so myself, I’m trying.

    Apparently in 2001, the UCC was changed and now is more securitization-friendly. MERS and its stinking cronies at the MBA come to mind.
    This whole deal IS all about secured interests in our notes and coll instruments held by the trusts. Most of us would not think that security interests were created by sale. We think – out in business land – they’d be granted or what not, but we wouldn’t think they were actually being purchased. But, that’s what the trusts bought. Even though I have suspected the trusts only got payments rights, I’m still dumb founded. They got payment rights, alright – just from the primary obligor, the bankster and only pursuant to security interests. I’ll tell you something. I think that’s a load of horse manure. I think it’s a damn loan with another name. The only thing that might distinguish a loan from a security interest is its remedy for breach (here by the pirmary obligor, the bank) and the jury isn’t in yet on whether or not that diff is in the trust’s favor or the banksters. I’m thinking banksters.
    It IS the bankster whose default on the payments causes default, NOT the homeowner’s. Security interest (trust) secured by loans (ours) secured by mortgages = mbs. And this stinking article even tries to figure out what to do if the bankster is in default but the note maker isn’t. I ain’t making this up.
    The most rudimentary question is: can security interests be the basis for securities? And if the answer is no, ?????

    Just to reiterate – I was wrong about bulk sales of notes being done in sec’n pursuant to art 9 and that failure to deliver resulted in only security interests. It does appear bulk sales are reg’d by art 9, but we’re not talking sales as you and I would think. We are talking sales of security interests. There were no sales intended and guess what? The new art 9 does not require delivery of the collateral (our loan docs) to perfect the security interests (of the trusts).

    **Remember we were finally making a distinction between one with a right to enforce and an owner? This article discusses the attempt to
    pass the right of enforcement to the trusts by way of article 3, which is just what I thought they were up to. I don’t think it flies and I’m not of a mind they even think it does.

    If anyone takes the time to read this material, where it says
    “mortgagor”, think homeowner. Where it says “mortgagee”, think
    B of A for ease. If this material tries to say as I think it did, that the UCC holds that a coll instrument follows a note, it’s fiction.
    What art 9-203(g) says is perfection of a security interest in a note is perfection of a sec interest in its collateral instrument. NOT the same thing. Imo, there are other false statements and willfully false conclusions in this material. I really think I got this one right and I’ll throw it out here even if I have to eat crow. If Stopa is willing to share his arguments, I can eat crow if necessary.

    I did have trouble with a couple parts of this and could use some help. I’m curious why you got off this, NG. I’m pretty sure I, for instance, wouldn’t have gotten it when you posted it in 2009 had I been around, but still:

    If anyone wants to understand the numbers being run on homeowners, I really encourage you to read this. And if you find what I found, send it to every lawyer you know. If not, lay it on me.
    I’m not looking to be right or wrong. I’m looking for facts and I believe I’ve found them (where it doesn’t “deviate”) We need serious discussion imo of their use of Art 3, which is pretty much what i posited the other day, acc to this material.
    These are lay opinions expressed for the purpose of discussion.
    Literally. I’d beg if I thought it would do any good.

  36. What do you suppose this is? Only takes a minute:

    And what is the tape they’re talking about?

  37. @jve -I do understand what you’re saying about training the raccoons, believe me. Thought it myself more than once. I’ve thought of it as drawing them a map. Ftr, I’m not saying that’s what Stopa’s deal does. I haven’t read these orders yet.
    I’d just like to make a distinction, and anyone feel free to disagree. Dismissal is not an adjudication on the merits, but an order granting summary judgment is and therefore res j attaches.
    I don’t understand all of what else you said, but if I got the gist, sounds good for those who got dismissal without prejudice and want to end it and smack down the bums while they’re at it. .

  38. In my view counsel is better advised to go after the offending “bank” itself, [not the “bank as trustee for some certificates that are unknown and nobody ever sees”], and the lawyers in that law firm, by filing counter-claims FIRST, and then, once the counter-claims are in the docket record, then to file for summary-judgment dismissal of the “Bank’s” claims. If successful, the foreclosure suit is now converted into a combination tort and contract suit for damages, from the “bank as trustee,” the “bank” itself, the attorneys, and the law firm.

    I agree any counterclaim is better than none. I usually like to assert a counterclaim that has to be with who may own the obligation pursuant to 15 usc 1641(g)1. this statue alone supports neil’s position on ffollowing the money trail to the undisclosed investor. (See Fremont V Davilar

  39. […] Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud Tagged: stayinmyhome, STOPA Livinglies’s Weblog […]

  40. I agree with Nierdermeyer. So long as foreclosure mills deal with a nobody homeowner in the boondocks whose win does not present much risk to change the overall landscape, they probably won’t refile right away, if they ever do, and they will concentrate on the 95% of homeowners who still refuse or fail to fight. Easy target and easy win. The idea is to define the landscape as a minefield for homeowners and piling up wins creates intimidation and prevents “deadbeats” from making a move.

    That no longer holds true though when the win would open a huge pandora box, as in the case of Lynn Szymoniak. Her case became political as soon as she came out with the goods and it had to be dismissed at any cost: for a minute there, the foreclosure mill thought they were winning the battle and they would have, had she not gotten that huge whistleblower settlement. In the end, however, mills still lose the war, even if it doesn’t look like it. Because what she managed to accomplish is get the info out to the public. That’s why every homeowner must fight and do it as publicly as feasible. When every case become political, the situation will be resolved once and for all. Imo. And however way we want to look at it, it has never been about the economy but about politics all along.

  41. @Jan Van Eck

    What you say is true but “a win is a win” and as we have all seen the “banks” submit the most blatant error filled forgeries into evidence … when they come back ,, you will be at the end of the line ,, they will go after the rest of their “inbox” first and then try to figure out how to get around the bad docs introduced in the first go-round and somehow get newer better forgeries to be accepted without you raising the alarm… remember you’re already in the 4% minority that FOUGHT BACK and furthermore you’re in the far tinier percentage that WON … they will not be coming back after you soon …

  42. Without in any way desiring to detract from the efforts of Maitre Stopa, who has been doing some seriously heavy lifting in the difficult Florida courts setting, I would comment that the obtaining of dismissals “without prejudice’ [leaving the plaintiffs free to re-file] is akin to training the raccoons who want to raid your garbage pail. Right now, the mill lawyers (some are as dumb and dull as a bag of hammers) do seriously dumb things, like manufacturing documents after-the-fact, or farming that out to some forgery outfit like Lender Processing Services. By going in with a summary-judgment Motion seeking dismissal, and obtaining it, all you are doing is training the raccoons to do better the next time around. So it is a short victory.

    In my view counsel is better advised to go after the offending “bank” itself, [not the “bank as trustee for some certificates that are unknown and nobody ever sees”], and the lawyers in that law firm, by filing counter-claims FIRST, and then, once the counter-claims are in the docket record, then to file for summary-judgment dismissal of the “Bank’s” claims. If successful, the foreclosure suit is now converted into a combination tort and contract suit for damages, from the “bank as trustee,” the “bank” itself, the attorneys, and the law firm. By maintaining the shell of the original litigation, you have a filing priority to their attempts at “foreclosure,” and you have not had to pay any filing fees either. Now the bad guys are exposed to the wrath of the jury, and they have nothing to show for it.

    Going at it piece-meal, by a series of stopping moves by MSJ, will gain you time, but in the end what you are doing is training the raccoons to be better at raiding. Do you really want that as your objective?

Contribute to the discussion!

%d bloggers like this: